HQ 0082737 - Tariff classification of misses' dress shoes - United States International Trade Commision Rulings

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HQ 082737

April 13 1989

CLA-2 CO:R:C:G 082737 c

CATEGORY: CLASSIFICATION

TARIFF NO.: 6402.99.1570

Ms. Jane A. Sheridan
Import Department
Pagoda Trading Co., Inc.
1950 Craig Road
St. Louis, Missouri 63146

RE: Tariff classification of misses' dress shoes

Dear Ms. Sheridan:

In a letter dated April 25, 1988, you inquired as to the tariff classification under the Harmonized Tariff Schedule of the United States (HTSUSA) of certain misses' dress shoes manufactured in China and Taiwan. Samples were submitted for examination.

FACTS:

The samples designated as styles 6045G and 64657C are slip-ons with plastic uppers and plastic outsoles. Both shoes have decorative textile bows attached to the vamp near the toe.

ISSUE:

Are the textile bows accessories under the HTSUSA which would require their measurement as part of the external surface area of the uppers?

LAW AND ANALYSIS:

Subheading 6402.99.15 provides for other footwear with outer soles and uppers of rubber or plastics, having uppers of which over 90 percent of the external surface area (including any accessories or reinforcements such as those mentioned in note 4(a) to this chapter) is rubber or plastics. Note 4(a) to

Chapter 64 states that "(t)he material of the upper shall be taken to be the constituent material having the greatest external surface area, no account being taken of accessories or reinforcements such as ankle patches, edging, ornamentation, buckles, tabs, eyelet stays or similar attachments."

It is our opinion that subheading 6402.99.15 does not require that everything that was excluded under Note 4(a) must be added back in determining classification under that provision. If there was meant to be an add-back requirement, the superior heading could have read, "including all accessories or reinforcements excluded by reason of Note 4(a)". Instead, the heading states accessories or reinforcements "such as" those mentioned in note 4(a).

It is our opinion that loosely attached appurtenances are not part of the upper at all and therefore are not added back in measuring the external surface area. The courts have consistently held under the Tariff Schedules of the United States Annotated (TSUSA), that loosely attached appurtenances are excluded when measuring the external surface area of the upper. See. e.g. United States v. Castelazo & Associates A/C Stonewall Trading Company, 57 CCPA 16, C.A.D. 970 (1969), affirming 60 Cust. Ct. 650, C.D. 3486 (1968); where fur trimmed buttons attached to the uppers having merely ornamental value and no utility, were not parts of the upper for tariff purposes. T.D. 70-238(19) dated October 15, 1970 (1970); HRL 051937 dated June 6, 1977; N.Y. Ruling letter 807388 dated July 31, 1984. As a result of these decisions, Customs adopted the practice of excluding loosely attached appurtenances from the measurement of the external surface area of the upper.

Moreover, this approach is consistent with HRL 081305 of March 10, 1988. HRL 081305 dealt with among other things, whether shoelaces should be considered as part of the external surface area of the upper. Shoelaces did not appear to be "ejusdem generis" with the examples in Note 4(a), because those examples are presumably firmly affixed to the balance of the upper. Id. at p.2. Consequently, the shoelaces at issue were not part of the upper and were not considered when measuring the external surface area.

HOLDING:

In view of the foregoing, styles 6045G and 64657C are classifiable under subheading 6402.99.1570, HTSUSA, as other misses' footwear with outer soles and uppers of rubber or plastics, other footwear, other, having uppers of which over 90 percent of the external surface area (including any accessories or reinforcements such as those mentioned in note 4(a) to this chapter) is rubber or plastics, with duty at the rate of 6 percent ad valorem.

Sincerely,

John Durant, Director

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